7 ELR 20101 | Environmental Law Reporter | copyright © 1977 | All rights reserved

Greene County Planning Board v. Federal Power Commission

No. 76-4151 (2d Cir. December 8, 1976)

The Second Circuit Court of Appeals rules that the Federal Power Commission (FPC fulfilled its obligations under the National Environmental Policy Act and the Federal Power Act in deciding to authorize construction of an electrical transmission line through the scenic Durham Valley. The case must be remanded to the FPC, however, for reconsideration of the agency's denial of petitioners' requests for reimbursement of attorneys' fees and witness expenses. The court concurs in the FPC's conclusion that the Gilboa-Leeds transmission line is an appropriate unit for environmental impact statement (EIS) coverage. The Commission found, on the basis of substantial evidence, that the line is necessary in order for the state to make optimal use of the existing Gilboa pump storage facility, and the project thus has independent utility. The EIS therefore need not encompass related present and future proposals. Furthermore, the FPC adequately considered alternative routes and the possibility that the line may ultimately be upgraded from 345 to 765 kilovolts. The Commission did not abuse its discretion in refusing to reopen the record to consider new evidence concerning the recent decline in New York power consumption levels and the successful operation of the Gilboa facility without the Gilboa-Leeds line, since these facts at best only partially undercut the agency's determination that the line is necessary. The FPC based its denial of attorneys' fees and witness expenses on the conclusion that it lacked authority to make such payments and that none of the intervenors deserved compensation in any event. A recent authoritative opinion issued by the Comptroller General indicates that the FPC does in fact have the power to pay intervenors for these expenses under certain circumstances. Because it appears the intervenors in this case may be able tomeet the standard enunciated by the Comptroller General, the equitable course of action is to remand the compensation issue to the Commission.

A dissent argues that the majority errs in according the Comptroller General's opinion as much authority as a statute or Supreme Court decision, and that the FPC should in any event not be made to reconsider its discretionary determination not to award compensation.

Counsel for Petitioners
Robert J. Kafin
8 Pine St.
Glens Falls NY 12801
(518) 793-6631

Barry H. Garfinkel
Skadden, Arps, Slate, Meagher & Flom
918 Third Ave.
New York NY 10022
(212) 371-6000

Counsel for Respondent
Philip R. Telleen
Drexel D. Journey
Robert W. Perdue
Allan A. Tuttle
McNeil Watkins, II
David P. Boergers
Federal Power Commission
Washington DC 20426
(202) 275-4346

Counsel for Intervenor Power Authority of the State of New York
Thomas F. Moore, Jr.
Scott B. Lilly
John C. Mason
Power Authority of the State of New York
10 Columbus Circle
New York NY 10019
(212) 265-6510

Joined by Bonsal, J.*; Van Graafeiland, J., dissents.

[7 ELR 20101]

Lumbard, J.:

These petitions for review under 16 U.S.C. § 825(b) of orders of the Federal Power Commission authorizing construction of an electrical transmission line by the Power Authority of the State of New York and declining to award attorneys' fees and other litigation expenses to various intervenors provide the fourth occasion for this court to review aspects of PASNY's efforts to construct a 35 mile power line through the scenic Durham Valley in Greene County.1 The Commission issued its opinion and order on January 29, 1976, and on April 27, 1976 it denied a motion to reopen the record.

The Greene County Planning Board and the Town of Greenville (hereinafter "greene County") assert that the Commission violated its duties under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., and under the Federal Power Act, 16 U.S.C. §§ 791 et seq., by improperly limiting its analysis of benefits and adverse impacts rather than considering related, pending projects and broader systemic concerns and alternatives. Moreover, petitioners claim the Commission should have reopened the record to consider newly-available data on electricity consumption and other evidence tending to rebut its conclusion that the power line is necessary. They also make various complaints about the adequacy of the Commission's environmental impact statement and the fairness of the hearing conducted by the administrative law judge. We conclude that the Commission has fulfilled its obligations under NEPA and the FPA, and that none of petitioners' other claims warrant reversal.

The Town of Durham and the Association for the Preservation of Durham Valley, intervenors before the Commission who were successful in urging the selection of an alternative route for the power line, join with Greene County in asking us to reverse the Commission's refusal to pay for their litigation expenses. Since recent rulings by the Comptroller General indicate that the FPC has authority to grant these reimbursements in appropriate circumstances, we remand to the Commission for further [7 ELR 20102] consideration of this issue with respect to the Durham petitioners.


The history of this case dates back to August 1968 when the PASNY applied for approval from the FPC for construction of an 1100-megawatt pumped storage facility near Gilboa, New York. Under 16 U.S.C. § 797(e) the FPC has licensing jurisdiction over such a hydroelectric project and over any transmission lines that are designed for the primary purpose of serving the project. The plan for the Gilboa project was approved by the Commission in June 1969, and it envisaged three 345 kilovolt transmission lines, specifications for each of which would be subject to final review by the Commission. One line was to run southwest to Dehli, one northeast to New Scotland (near Albany), and one southeast for 35 miles to Leeds. Plans for these lines were soon submitted, and the Dehli and New Scotland lines were promptly approved without arousing significant opposition. Environmental controversy arose over the proposed Leeds line, however, and various opponents ultimately received permission from the Commission to intervene. After some reworking of the Leeds proposal by the PASNY, a hearing before Administrative Law Judge William C. Levy commenced on November 9, 1971.

The hearing continued until interrupted by order of this court on January 17, 1972. In Greene County Planning Board v. FPC (Greene County I), 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849 (1972), we ruled that the FPC was violating NEPA by conducting hearings in reliance on the environmental report submitted by the PASNY, instead of first having prepared its own environmental impact statement. Id. at 422. The FPC staff was ordered to prepare its own impact statement to serve as a foundation for cross-examination of PASNY and FPC witnesses at the hearing. In Greene County I we also cautioned the Commission not to ignore broad but potentially relevant considerations such as future power demand and supply, alternative sources of power, and impending plans for further power facility construction.

After its petition for certiorari had been denied, the FPC set about the task of complying with this court's mandate by drafting an impact statement, soliciting comments, and preparing final impact statement. The hearing then recommenced2 and ran for two and a half months before the record was closed on October 27, 1973. Considerable expert engineering testimony on the need for the transmission line and testimony on its environmental impact was adduced from the PASNY employees charged with the planning and evaluating of the line and also from the employees of the FPC who had prepared the environmental impact statement. The Durham intervenors put on their own environmental experts to testify against the PASNY's preference for a route running through the Durham Valley, which is an especially scenic part of Greene County. The Greene County intervenors sought to call as their own expert witness an environmental engineer employed with the Office of Environmental Planning of the New York State Public Service Commission, but Judge Levy ruled that the state was not required to furnish such expert testimony. On July 1, 1974, Judge Levy issued his opinion authorizing construction of a Gilboa-Leeds line and selecting as environmentally least harmful a route that skirted the Durham Valley, twenty-nine months later the Commission affirmed.

The Commission's finding of need for the transmission line rested on substantial evidence that the line is necessary if the PASNY is to make optimal use of the Gilboa power storage facility. Engineering opinion was unanimous that the Gilboa-Leeds line would significantly improve the "reliability and stability" of power transmission from the Gilboa project, as well as increasing the "transfer capability" of the overall PASNY network. Thus, the line would ensure access to readily available and inexpensive Gilboa power at times of peak consumption in New York City and other parts of the state, and it would also increase the PASNY's capacity to meet localized peak demands by transferring power as needed to and from various points within eastern New York.

The Commission also decided that the 345 kv transmission line should be constructed with the capability of being expanded to two 345 kv lines or a 765 kv line if the need for the additional transmitting capacity were to arise in the future. The second 345 kv circuit would be most useful if a second hydroelectric storage project presently under PASNY and FPC consideration were to be constructed in the vicinity of Gilboa; upgrading the line to 765 kv would be called for if the PASNY decided to go forward with its plans to upgrade its overall network of lines with which the Gilboa-Leeds line connects; and the Commission concluded that convertibility of the 345 kv line would result in substantial environmental and construction cost savings if either of these likely contingencies were to develop.

The Commission rejected Greene County's motion that it reopen the record in order to consider recent data indicating that electricity consumption in New York City and the rest of the state has significantly and unexpectedly declined, and also that since its construction in 1973 the Gilboa facility has been able to function without mishap and at full capacity by using just the Gilboa-New Scotland and Gilboa-Dehli transmission lines. The Commission said that this new information would not require any modification of its order for the construction of the Gilboa-Leeds line.


The purposes of NEPA are frustrated when consideration of alternatives and collateral effects is unreasonably constricted. This can result if proposed agency actions and evaluated in artificial isolation from one another. Accordingly, an agency is required to consider the full implications of each decision in light of other potential developments in the area, and to prepare a comprehensive impact statement if several projects are significantly interdependent. Kleppe v. Sierra Club, 49 L. Ed. 2d 576, 590 (1976); Chelsea Neighborhood Ass'n v. United States Postal Service, 516 F.2d 378, 388 (2d Cir. 1975); Natural Resources Defense Counsel v. Callaway, 524 F.2d 79, 87-90 (2d Cir. 1975). A balance must sometimes be struck between the importance of going forward with a project presently under consideration and the danger of improperly "piggybacking" several related projects by justifying each of them on the assumption that the others are to be constructed, only to discover later that the overall combination of the projects may do more harm than good.

[7 ELR 20103]

With these principles in mind, we concur in the FPC's conclusion that the Gilboa-Leeds transmission line is an appropriate unit for an impact statement. On the basis of substantial evidence, the Commission found that the line is necessary in order for the state to make optimal use of the existing Gilboa storage facility. Since the line was justified on this ground alone, there was no need for the impact statement to encompass other present and future PASNY proposals for which the line would have additional utility. Of course, under NEPA as well as under the long-range planning requirements of the Federal Power Act, 16 U.S.C. § 803(a), the Commission still had an obligation to take these related contingencies into account — as it did, for example, in providing for the possibility of a future doubling or upgrading of the initial 345 kv line — but it was not compelled to postpone for years its decision on the Gilboa-Leeds line while waiting for all these related plans to become fixed.

Petitioners also criticize the FPC for failing to consider the special environmental impacts associated with 765 kv transmission. We agree with the Commission, however, that detailed analysis of this ancillary subject, would not have been productive. In ordering that the 345 kv line be designed so as to be urgradable to 765 kv if necessary, the Commission did not pass on the ultimate merits of 765 kv circuitry; it simply took into account the reasonable possibility that such upgrading may be desirable at some future date. It appears that inclusion of this capability represents a relatively minor modification of the primary 345 kv structure, and that it in no sense compels future upgrading. Hence, provision for upgrading would seem to be appropriate regardless of what might be said at some future time about the adverse environmental effects of 745 kv transmission. Under these circumstances there was no necessity for extensive environmental analysis of 745 kv transmission in the present licensing proceedings.

Another contention of petitioners is that the FPC's consideration of alternative routes was inadequate. Although the impact statement discusses five routes from Gilboa to Leeds as well as the possibility of relying on existing rights-of-way for more circuitous routes to the north or the south, petitioners suggest that alternatives not involving Gilboa and Leeds termini should also have been considered.The record reveals, however, that a third 345 kv line is necessary for maximum reliability of transmission from Gilboa. It also seems clear that, given the existing PASNY network, having Leeds as the other terminus of this third line from Gilboa is the only way to ensure reliable power flow from Gilboa to both upstate New York or New York City. Since the need for an additional circuit from Gilboa to Leeds was thus established, we are satisfied that consideration of "systems alternatives" involving other termini was unnecessary.

Nor did the Commission abuse its discretion in refusing to reopen the record to consider new evidence. While an agency does have an obligation to make corrections when it has been relying on erroneous factual assumptions, especially where broad public interests are at stake, see Hudson River Fishermen's Ass'n v. FPC, 498 F.2d 827, 833 (2d Cir. 1974), an agency's refusal to reopen the record cannot be deemed arbitrary and capricious unless the new evidence offered, if true, would clearly mandate a change in result, see ICC v. Jersey, 322 U.S. 503, 514-15 (1944). Although the decline in New York power consumption levels and the successful operation of the Gilboa facility without the Gilboa-Leeds line do tend to undercut the Commission's conclusion that the additional line is necessary for optimal reliability of power transmission from Gilboa, the undercutting is at best only partial. Consequently, we cannot quarrel with the reasonableness of the Commission's conclusion that neither of these new facts would affect its determination regarding the need for a Gilboa-Leeds line.

Petitioners assert that the record was also incomplete due to the improper exclusion of evidence by Judge Levy. They object specifically to two rulings: (1) the refusal to allow them to use a state employee as their own expert witness, and (2) the refusal to order the FPC to produce a potentially relevant staff report.

With respect to the first ruling, we do not agree with respondent's assertion that employees of applicants can never be subpoenaed to furnish expert testimony before the FPC. The Administrative Procedure Act, 5 U.S.C. § 555(d), provides that agency subpoenas shall issue "on a statement or showing of general relevance and reasonable scope of the evidence sought." The agency must determine what constitutes "reasonable scope" in each case. See, e.g., Independent Directory Corp. v. FTC, 188 F.2d 468, 470-71 (2d Cir. 1951). Although Virginia Petroleum Jobbers Ass'n v. FPC, 293 F.2d 527, 529 (D.C. Cir.), cert. denied, 368 U.S. 940 (1961), indicates that opponents of an application are not routinely entitled to free run of the applicant's experts, this does not mean that subpoenas of experts are never appropriate where, for example, the parties seeking the subpoena are unable to afford their own experts, the expert testimony sought would be highly relevant, and the employer-applicant is itself a government entity with a corresponding obligation to serve the broad public interest. Nonetheless, since substantial environmental evidence was already in the record and since the witness, Frank Brugraff, was expert only in the environmental effects of transmission lines, there is little reason to believe that his expert testimony would have affected the Commission's ultimate finding of need for the line. In light of this consideration, we cannot say that curtailment of Burgraff's examination was an abuse of discretion.

The document at issue in the second ruling was a 1969 internal agency report prepared by the FPC staff which concluded that the Gilboa-Leeds line would function for the primary purpose of serving the Gilboa hydroelectric facility and would therefore be subject to FPC jurisdiction under 16 U.S.C. § 797(e). Certainly, the standards for discovery in an administrative proceeding should not be more restrictive than the standards for disclosure under the Freedom of Information Act, 5 U.S.C. § 552. See generally Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv. L. Rev. 1047 (1973). Subject to such considerations as confidentiality and the need for unencumbered intra-agency circulation of preliminary views, see International Paper Co. v. FPC, 438 F.2d 1349, 1358-59 (2d Cir.), cert. denied, 404 U.S. 827 (1971); Ackerley v. Ley, 420 F.2d 1336, 1341 (D.C. Cir. 1969), approved staff reports that are relevant should generally be made available to parties in an agency proceeding. See, e.g., GSA v. Benson, 415 F.2d 878, 880-81 (9th Cir. 1969). Nevertheless, any failure of discovery here does not warrant reversal since the "primary line" report would have been merely cumulative of the substantial evidence [7 ELR 20104] already in the record on this function of the Gilboa-Leeds line.

Petitioners also allege that the environmental impact statement is not based on sufficient independent staff analysis, see C.F.R. § 281(b), fails to use an interdisciplinary approach, and is too abstract and too argumentative. We disagree. At the hearing the FPC staff experts testified that, as required by NEPA, see Greene County I, 455 F.2d at 420, they had conducted their own evaluation of the need for, and impact of, the transmission line; their reliance on PASNY computer studies and on power-flow data routinely recorded by the PASNY and other electric utilities was not an unreasonable abrogation of their analytical responsibilities. As for the other criticisms, we have read the impact statement and find them to be unpersuasive.


With respect to the intervenors' attorneys' fees and witness expenses the Commission denied all requests for reimbursement, holding that it lacked the authority to make such payments and that none of the intervenors deserved such compensation in any event since they had only been "protecting their own interests." When the same matter was before us in Greene County I, we had declined to order the FPC to reimburse intervenors in the absence of express Congressional authorization. 455 F.2d at 426.

While this appeal has been pending, however, the Office of the Comptroller General has announced that in its opinion the FPC does have authority to pay for intervenors expenses. In Matter of Costs of Intervention — Nuclear Regulatory Commission, Decision B-92288 (February 19, 1976), the Comptroller General ruled that the NRC has implied authority to reimburse impecunious intervenors. A letter of May 10, 1976 from the Comptroller General to the Oversight and Investigations Subcommittee of the House Committee on Interstate and Foreign Commerce indicates that this decision is equally applicable to the FPC and eight other agencies: "appropriated funds of each agency may be used to finance the costs of participants in agency hearings whenever the agency finds that (1) it cannot make the required determination unless it extends financial assistance to certain interested parties who require it, and whose representation is necessary to dispose of the matter before it; and (2) the party is indigent or otherwise unable to finance its particpation."3

Since the Comptroller General is Congress's agent for the purpose of determining the legality of administrative expenditures, see 31 U.S.C. § 65(d), his decision "upon any question involving a payment to be made by [an agency] . . . shall govern the General Accounting Office in passing upon the account containing such disbursement." 31 U.S.C. § 74. The Comptroller General's decision is authoritative and cannot be reversed by a court unless clearly contrary to law. See Brunswick v. Elliott, 103 F.2d 746, 749 (D.C. Cir. 1939).4

Although express statutory authorization is required before either a court or a regulatory commission can order one litigant to pay a prevailing litigant's expenses on the ground that the prevailing litigant represents the public interest, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Turner v. FCC, 514 F.2d 1354 (D.C. Cir. 1975), the Comptroller General has concluded that fee reimbursement is distinguishable from fee shifting because it involves no exercise of compulsion against a private party.

Since public hearings are integral to the functioning of an agency such as the FPC, authorization for reimbursement of indigent intervenors who make important contributions in these hearings can reasonably be found in the agency's general statutory mandate. See 16 U.S.C. § 793 ("The commission may make such expenditures . . . as are necessary to execute its functions."). On this basis the Comptroller General's decision is not clearly incorrect and as a consequence the FPC now appears to have authorization to pay intervenors' expenses.5

Still, the Commission has implied that even if it had the authority it would not grant fees and expenses to the Durham petitioners because they were only "protecting their own interests," and it is argued that we should affirm on this ground. However, we have some doubts about the fairness of withholding funds from these particular petitioners. All intervenors in agency proceedings are engaged in protecting their perceived self-interests; otherwise they would not bother to intervene. Although the Durham intervenors were acting in their own interests, they were at the same time serving the broader public interest in the preservation of unspoiled scenic countryside. They seem to have played an essential role in the proceedings: it was their evidence and advocacy that appears to have been responsible for persuading the Commission to reject the preference of its own staff and the PASNY for the slightly shorter route running through the Durham Valley. Thus, the Commission was substantially aided in making its determination by the action of the intervenors. Where environmental issues are involved, a salutary public interest is served if the parties affected have the opportunity to express their views. Otherwise, the Commission could be limited to the information made available to it by the power companies and business interests directly involved. Moreover, it seems quite possible that the Durham petitioners could qualify as "indigent" in that their litigation obligations may be unreasonably large in comparison to their financial resources.

Under these circumstances, where there is a good chance that the Durham intervenors may meet the standards approved by the Comptroller General, we believe the equitable course is to remand to the Commission for reconsideration of its holding in light of the Comptroller General's recent decisions.

We leave it to the Commission to determine whether compensation is appropriate and, if so, what further proceedings are appropriate here in order to provide fair consideration [7 ELR 20105] of the Durham petitioners' reimbursement request.6

All petitions for review are denied, except that the Town of Durham and the Association for the Preservation of Durham Valley, on which we remand to the Commission for further consideration of these petitioners' requests for reasonable reimbursement of their litigation expenses.

* Sitting by designation.

1. Green County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 499 U.S. 849 (1972); Greene County Planning Board v. FPC, 490 F.2d 256 (2d Cir. 1973); Greene County Planning Board v. FPC, 528 F.2d 38 (2d Cir. 1975).

2. The intervenors again sought a stay of the hearing from this court, this time on the basis of inadequacies in the impact statement; but these challenges were rejected as premature in Greene County Planning Commission v. FPC (Greene County II), 490 F.2d 256 (2d Cir. 1973).

3. It appears from the record that neither of the Comptroller General's rulings were considered by the Commission when it reached its decision in the instant case. The February 19 ruling on the NRC was issued just one week before Durham's petition for rehearing was filed, and no reference is made to the NRC ruling in either the rehearing petition or the Commission's denial of that petition. The May 10 letter, which dealt with the FPC specifically, postdates all of the Commission's decisions on reimbursement in this case.

4. Miguel v. McCarl, 291 U.S. 442 (1934), and McCarl v. Cox, 8 F.2d 669, 671 (D.C. Ct. App. 1925), cited by Judge Van Graafeiland in his dissent, were cases where the Comptroller General's rulings were clearly contrary to law.

5. Reasonable reimbursement should include reimbursement for out-of-pocket expenses incurred by the intervenors, reimbursement for experts' fees and expenses, payment of reasonable attorneys' fees to intervenors' counsel, and reimbursement for out-of-pocket expenses and disbursements incurred by counsel.

6. We recognize that the task of developing detailed standards for awards to intervenors may best be accomplished through rulemaking or through legislation, but this does not mean that the Durham petitioners are not entitled at least to a reasoned explanation for the withholding of reimbursement in their case.

[7 ELR 20105]

VAN GRAAFEILAND, Circuit Judge, Dissenting:

I concur with the majority that the petition for review of Greene County and the Town of Greenville be denied but disagree with my brothers' disposition of the petition of the Town of Durham and the Association for the Preservation of Durham Valley.

In 1972, when this case was before us on a prior appeal, we reviewed the statutory authority of the Federal Power Commission and found no basis "to extend the Commission's power to include paying or awarding the expenses or fees of intervenors." Greene County Planning Board v. FPC, 455 F.2d 412, 426 (2d Cir.), cert. denied, 409 U.S. 849 (1972). We are now advised that the Comptroller General, presumably after examining the same statutory provisions, has reached exactly the opposite conclusion. Moreover, appellants, Town of Durham and Association for the Preservation of Durham Valley, now demand that we direct the Federal Power Commission to comply with the Comptroller General's contrary interpretation of the law. I cannot agree that this is a proper role for this Court to play.

I can find no statute which empowers the Comptroller General to issue what is in effect a declaratory judgment clothing the Federal Power Commission with authority to disburse public funds, in the face of the Commission's own determination that it has no such power and this Court's finding in support thereof. See 2 West's Federal Practice Manual (1970) § 1721 at 162. His authority and responsibility as the auditing agent of Congress is to provide a sound accounting structure for the government from the standpoint of effective financial control and independent audit. 31 U.S.C. § 65(d); H.R. No. 2556, 1950 U.S. Code Cong. Service, 3707, 3717. While the Comptroller General has not hesitated to withhold approval of disbursements which he has determined to be "illegal", some of his activities in this field have been said to be based upon "dubious authority" and to represent "questionable policy". T. Morgan, The General Accounting Office: One Hope for Congress to Regain Parity of Power With the President, 51 N.C. L. Rev. 1279, 1283 (1973). Be that as it may, his administrative control of the purse strings as the representative of Congress gives him power in this area which has not often been challenged by the courts. See, e.g., Brunswick v. Elliott, 103 F.2d 746, 750-51 (D.C. Cir. 1939). However, when the Comptroller General has gone beyond the bounds of the authority which may legitimately be construed to be his, the courts have not hesitated to disregard his holdings. See Miguel v. McCarl, 291 U.S. 442 (1934); McCarl v. Cox, 8 F.2d 669, 671 (D.C. Cir. 1925).1

No officer or agent of the United States may disburse public money unless authorized by Congress to do so. Royal Indemnity Co. v. United States, 313 U.S. 289, 294 (1941); Heidt v. United States, 56 F.2d 559, 560 (5th Cir. 1932); Fansteel Metallurgical Corp. v. United States, 172 F. Supp. 268, 270 (Ct. Cl. 1959). Congress has specifically provided that sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which appropriations were made and for no others, 31 U.S.C. § 628, and has prohibited any officer or employee from involving the government in any obligation for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such obligation is authorized by law. 31 U.S.C. § 665(a). The Federal Power Commission has never deemed itself authorized to pay the legal fees of private litigants, and, a fortiori, has made no request of Congress for an appropriation to pay these fees. Authorization for this payment must come from Congress, Turner v. FCC, 514 F.2d 1354, 1356 (D.C. Cir. 1975); it cannot be derived from a letter of the Comptroller General addressed to the chairman of a congressional committee.

31 U.S.C. § 74, relied upon by the majority, permits the head of an executive department, in his discretion, to apply to the Comptroller General for a commitment in advance that the GAO will not question the validity of a specific disbursement in passing upon the account of that department. Such commitment has never been requested by the Federal Power Commission in this case, because it has not sought to exercise the authority which the Comptroller General has conceded to it. In reviewing the determination of the Commission which is presently before us, it is for this Court to decide all relevant questions of law and make all requisite statutory interpretations. 5 U.S.C. § 706. Mulry v. Driver, 366 F.2d 544, 549 (9th Cir. 1966).2 We abdicate our responsibility when we treat an unsolicited interpretation by the Comptroller General as the equivalent of a Supreme Court ruling, and needlessly inject the Federal Courts into an area of administrative discretion when we compel the Federal Power Commission to conform its practices to what the Comptroller General opines are proper. Cf. Greene County Planning Board v. FPC, supra, 455 F.2d at 427.3

Even if my brothers are correct in holding that we must [7 ELR 20106] require the Federal Power Commission to follow the Comptroller General's ruling, we should not go beyond the scope of that ruling. The Comptroller General's stated position is that only the administrative agency involved can make the determination as to whether payment of the expenses of indigent intervenors is appropriate. The Commission, recognizing that Durham intervened for the protection of its own interests, found payment of its attorneys' fees to be inappropriate. We should not require the Commission to reconsider its discretionary determination merely because we have some doubts about its fairness. 5 U.S.C. § 701(a)(2); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir. 1965). Reimbursement of the expenses of private interests who "may sometimes cloak themselves with a semblance of public interest advocates", Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1006 (D.C.Cir. 1966), is a matter properly within the cognizance of the agency involved.

For the foregoing reasons, I respectfully dissent from that portion of the majority's decision which grants the petition of the Town of Durham and the Association for the Preservation of Durham Valley.

1. For discussions of the question of judicial review, see H. Mansfield, Judicial Review of the Comptroller General, 20 Cornell L.Q. 459 (1935); also note in 3 Geo. Wash. L. Rev. (1934) at 97.

2. In so doing, we should not overlook the Commission's own interpretation of its statutory powers and the practices adopted by it pursuant thereto. See Lucas v. American Code Co., 280 U.S. 445, 449 (1930).

3. The majority's attempt to find support for the Comptroller General's decision in the provisions of 16 U.S.C. § 793, which authorizes the Commission to make expenditures "necessary to execute its functions", is in clear contradiction of our prior holding in Greene County Planning Board v. FPC, supra, 455 F.2d 412. A commission's "functions" cannot exceed its powers. The administrative powers of the Federal Power Commission are set forth in section 309 of the Federal Powers Act, 16 U.S.C. § 825(h), and we held in Greene that such powers did not include the paying or awarding the expenses or fees of intervenors.

We also pointed out in Greene, at 427, that in 1971 the Administrative Conference of the United States "refused to adopt a recommendation which would have endorsed the principle of reimbursing the legal expenses incurred by intervenors in administrative proceedings." Since then, Congress has had legislation under consideration which would authorize administrative agencies to award litigation expenses to intervenors, depending on their contribution to the decision making process. See S. Rep. No. 94-863, 94th Cong., 2d Sess. (1976). Until Congress, the people's chosen representative, speaks, it is "inappropriate" for this authorization to be granted by anyone else. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247 (1975).

7 ELR 20101 | Environmental Law Reporter | copyright © 1977 | All rights reserved